Citation Nr: 0403583
Decision Date: 02/09/04 Archive Date: 02/23/04
DOCKET NO. 02-15 244 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether the veteran may challenge the finality of the
June 29, 1990 rating on the grounds that VA committed grave
procedural error in failing to execute its duty to assist the
veteran in developing his claim for service connection for a
psychiatric disorder.
2. Whether new and material evidence has been received to
reopen the claim of entitlement to service connection for
psychiatric disability.
REPRESENTATION
Appellant represented by: Kenneth M. Carpenter, Attorney
at Law
ATTORNEY FOR THE BOARD
Sabrina M. Tilley, Counsel
INTRODUCTION
The veteran served on active duty from March 1988 to June
1989.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a December 2000 rating decision of the St.
Petersburg, Florida, Regional Office (RO) of the Department
of Veterans Affairs (VA). The Board notes that the RO has
framed issue number 2 in terms of a claim for service
connection for psychiatric disability on the merits.
However, because of previous denials of service connection in
June 1990 and January 1996, the Board construes the issue to
be whether new and material evidence has been received to
reopen the claim for service connection for psychiatric
disability.
FINDINGS OF FACT
1. All relevant evidence necessary for a fair and informed
decision has been obtained by the originating agency.
2. By decision entered in June 1990, the originating denied
the veteran's claim of entitlement to service connection for
a psychiatric disorder.
3. The basis of the June 1990 denial was that no chronic
psychiatric disability was found to be related to the
veteran's military service, but a personality disorder that
is not contemplated in the laws providing for compensation
benefits.
4. The veteran was notified of the denial of service
connection in a letter, dated in October 1990; the veteran
did not file a timely appeal with respect to the June 1990
rating decision.
5. The veteran attempted to reopen his claim for service
connection in February 1995; but the originating agency, in
its January 1996 rating decision, found that new and material
evidence had not been received to reopen the claim for
service connection for a psychiatric condition.
6. The veteran was notified of the January 1996 rating
decision by a letter, dated later that month; the veteran did
not initiate a timely appeal from that determination.
7. The veteran attempted to reopen his claim for service
connection for a psychiatric disability in November 1999.
8. Since the January 1996 rating decision, no new evidence
has been submitted into the record.
CONCLUSIONS OF LAW
1. The June 1990 rating decision that originally denied
entitlement to service connection for a nervous condition was
final, and finality may not be challenged, as a matter of
law, based on an allegation of failure of VA's duty to assist
the veteran. 38 U.S.C.A. § 7105 (West 2002);
38 C.F.R. §§ 3.104, 3.105, 20.1103 (2003).
2. The January 1996 RO decision that found no new and
material evidence had been received to reopen the claim of
entitlement to service connection for a psychiatric disorder,
is final. 38 U.S.C.A. § 7105 (West 2002);
38 C.F.R. §§ 3.104, 20.1103 (2003).
3. New and material evidence has not been received to reopen
the claim for service connection for a mental disorder to
include depression and an adjustment disorder.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (effective
prior to August 29, 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Finality of the June 1990 Rating Decision
The appellant contends that VA failed in its duty to assist
the veteran in its June 1990 rating decision. Citing Hayre
v. West. 188, F3d. 1311 (1999) the appellant contends that as
a consequence of VA's failure to assist the veteran, the June
1990 rating decision was not final. The veteran's
representative, in September and October 2000 statements,
emphasized that the veteran was not pursuing a claim for
clear and unmistakable error of the 1990 decision but
requesting a collateral attack of the finality of the RO's
June 1990 decision.
Specifically, the veteran's representative, in a December
2001, notice of disagreement, enumerated a few examples of
failure of VA's duty to assist the veteran. For example, it
was noted the June 1990 (presumably the May 1990 VA
examination) VA examination was essentially inadequate, as
the veteran's service medical records were not available for
the examiner's review. Also, it was noted that VA should
have obtained an additional medical opinion to clarify the
indefinite and ambiguous diagnosis contained the 1990 VA
examination report.
The Rule of Finality
If a veteran fails to appeal from an RO decision concerning a
claim, the decision becomes "final," and "the claim will not
thereafter be reopened or allowed, except as may otherwise be
provided by regulations not inconsistent with this title."
38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. § 3.105(a) (2003).
Principles of finality and res judicata apply to agency
decisions that have not been appealed and have become final.
See Routen v. West, 142 F.3d 1434, 1437 (Fed. Cir. 1998)
(applying finality and res judicata to VA decisions). As we
observed in Routen, "unless otherwise provided by law, the
cases are closed and the matter is thus ended." Routen, 142
F.3d at 1438.
There are, however, two statutory exceptions to the rule of
finality. First, pursuant to 38 U.S.C. § 5108, the Secretary
must reopen a claim if new and material evidence regarding
the claim is presented or secured Second, a decision is
subject to revision on the grounds of clear and unmistakable
error. 38 U.S.C. §§ 5109A (decision by the Secretary) & 7111
(decision by the Board). These are the only statutory
exceptions to the finality of VA decisions. Cook v. Principi
318 F.3d 1334 (Fed. Cir. 2002).
Judicial interpretation of the law provides that a veteran
may bring a claim having the same factual basis as a
previously disallowed claim when an intervening and
substantive change in law or regulation creates a new basis
for entitlement to a benefit. See Spencer v. Brown, 17 F.3d
368, 372 (Fed. Cir. 1994); Routen, 142 F.3d at 1438. Such a
claim is treated as a new claim, however, and not a request
for reconsideration of a previously disallowed claim. See
Spencer, 17 F.3d at 372.
In Hayre, the veteran filed a claim in 1972 for service
connection for a nerve problem, stating on his claim form
that he had been treated while in service for "nerves" and
that he had talked to a psychiatrist, and requested that the
RO obtain his service medical records ("SMRs"). The RO sent
a request for the SMRs to the National Personnel Records
Center but did not receive them. The RO informed the veteran
that the basis of its denial was that that a nervous
condition was not shown in the veteran's medical records or
elsewhere. In 1992, the claimant was awarded service
connection for post-traumatic stress disorder. While seeking
an earlier effective date for the award of service
connection, the claimant challenged the RO's 1972 decision as
"clearly erroneous," arguing that the RO had not obtained
the psychiatric SMRs that he had requested and had failed to
afford him a VA examination. The Federal Circuit held first,
that an RO's single unsuccessful request for pertinent SMRs
that are specifically sought by a claimant does not fulfill
the RO's duty to assist the veteran in developing facts
pertinent to his claim. Id. at 1331-32; that, relying on
Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), a
breach of the duty to assist cannot amount to CUE. Hayre,
188 F.3d at 1333, and that the RO breached the duty to assist
in 1972, rendered the 1972 RO decision is not final for
purposes of direct appeal. Hayre, 188 F.3d at 1335. The
veteran and his representative claim entitlement under this
holding.
The Board observes, however, that the more recent judicial
interpretation of the law pertaining to finality expressly
overrules the holding of Harye. In Cook v. Principi, 318
F.3d 1334 (Fed Cir. 2002). The Federal Circuit stated:
"In summary, a breach of the duty to
assist the veteran does not vitiate the
finality of an RO decision. We therefore
overrule Hayre to the extent that it
created an additional exception to the
rule of finality applicable to VA
decisions by reason of 'grave procedural
error.' If additional exceptions to the
rule of finality in 38 U.S.C. §7105(c)
are to be created, if (sic) is for
Congress, not this court, to provide
them."
Cook, at 1341
Incidentally, the Federal Circuit stated however, that to the
extent it stands for the proposition that a breach of the
duty to assist cannot constitute CUE, Hayre remains good law.
By overruling the holding of Harye, as it pertains to the
issue of finality of due to grave procedural error and
failure of duty to assist, the Federal Circuit has eliminated
the very foundation upon which the veteran has based his
claim. Accordingly, the veteran's claim to attack the
finality of the RO's 1990 decision has no legal merit or
entitlement under the law. Sabonis v. Brown, 6 Vet.App. 426
(1994).
The Board observes that the veteran's representative has
argued that VA erred in failing to comply with its duty to
assist and duty to notified the veteran pursuant to the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). While this law will be
discussed in greater detail below, the Board is constrained
to address the veteran's representatives concerns.
The regulatory provisions implementing VCAA, found in
38 C.F.R. § 3.159, show that circumstances exist where VA
will refrain from or discontinue providing assistance where
there is no reasonable possibility that any assistance VA
would provide to the claimant would substantiate the claim.
Specifically, the circumstances in which VA will refrain from
or discontinue providing assistance in obtaining evidence
include, but are not limited to:
(1) The claimant's ineligibility for the benefit sought
because of lack of qualifying service, lack of veteran
status, or other lack of legal eligibility;
(2) Claims that are inherently incredible or clearly lack
merit; and
(3) An application requesting a benefit to which the claimant
is not entitled as a matter of law.
38 C.F.R. 3.159(d) (2003).
In the instant case, the veteran clearly falls in to category
number three. Therefore, while the representative's request
for a remand for compliance with VCAA has been acknowledged,
the Board finds that in the absence of legal merit, there is
no reasonable possibility that any assistance VA would
provide to the claimant would substantiate the claim.
II. New and Material Evidence-Background
Service connection for a mental disorder was previously
denied in a June 29, 1990 rating decision. At that time, the
originating agency found, in essence, that although the
presence of an adjustment disorder and depression was
suggested by way of provisional diagnosis, in service in
1989, no psychiatric disability was confirmed in service or
in the initial VA examination, conducted in May 1990. The
veteran was determined to have a personality disorder
instead. That type of condition is not considered in the law
and regulations applicable to the payment of monetary awards
38 C.F.R. § 3.303(c) (2003). The veteran was notified of
June 1990 decision by a letter, dated in October 1990.
The veteran attempted to reopen his claim in February 1995.
At that time, he submitted additional evidence including a
February 1995 VA hospital discharge summary, showing that the
veteran was treated for an adjustment disorder with depressed
mood in addition to a personality disorder. Furthermore, a
February 1995 private treatment report was received showing
that the veteran had a diagnosis of major depressive episode
and dysthymic disorder in addition to a personality disorder,
not otherwise specified. In January 1996, the RO found that
no new and material evidence had been received to reopen a
claim of entitlement to service connection for a psychiatric
condition. The veteran was notified of the January 1996
rating by a letter, dated later that month.
As indicated above, there has been a significant change in
the law during the pendency of this appeal. On November 9,
2000, the President signed into law the VCAA, Pub. L. No.
106-475, 114 Stat. 2096 (2000). This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA or filed before
the date of enactment and not yet final as of that date. 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed. Cir.
2002) (holding that only section 4 of the VCAA, amending 38
U.S.C. § 5107, was intended to have retroactive effect).
The final rule implementing the VCAA was published on August
29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001)
(codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a)). These regulations, likewise, apply to any
claim for benefits received by VA on or after November 9,
2000, as well as to any claim filed before that date but not
decided by the VA as of that date.
The Board observes that the VCAA appears to have left intact
the requirement that a claimant must first present new and
material evidence in order to reopen a previously and finally
denied claim under 38 U.S.C.A. § 5108 before the Board may
determine whether the duty to assist is fulfilled and
proceeding to evaluate the merits of that claim. It is
specifically noted that nothing in the Act shall be construed
to require the Secretary to reopen a claim that has been
disallowed except when new and material evidence is presented
or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C.A.
§ 5103A(f) (West 2002).
The Board acknowledges that the implementing regulations
modify the definition of new and material evidence and
provide for assistance to a claimant on claims to reopen.
See 66 Fed. Reg. at 45,630 (codified as amended at
38 C.F.R. §§ 3.156(a), 3.159(c)). However, the regulation
provisions affecting the adjudication of claims to reopen a
finally decided claim are applicable only to claims received
on or after August 29, 2001. 66 Fed. Reg. at 45,620.
Because the claimant's claim to reopen was received in 1999,
prior to that date, those regulatory provisions do not apply.
The Board finds no prejudice to the claimant in this case by
proceeding with the adjudication of the issue of whether new
and material evidence has been received to reopen a claim of
entitlement to service connection for psychiatric disability.
The requirement of submitting new and material evidence to
reopen a claim is a material legal issue that the Board is
required to address on appeal. Barnett v. Brown, 83 F.3d
1380, 1383-84 (Fed. Cir. 1996); see also Jackson v. Principi,
265 F.3d 1366 (Fed. Cir. 2001).
VA law provides that despite the finality of the prior
adverse decision a claim will be reopened and the former
disposition reviewed if new and material evidence is
presented or secured with respect to a claim that has been
disallowed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156 (effective prior to August 29, 2001).
New and material evidence means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a)
(effective prior to August 29, 2001).
The Court has held that VA must reopen a claim when "new and
material evidence" is presented or secured with respect to a
previously and finally disallowed claim. Stanton v. Brown,
5 Vet. App. 563, 566 (1993). The standards regarding the
issue of finality have been reviewed and upheld. Reyes v.
Brown, 7 Vet. App. 113 (1994).
The United States Court of Appeals (Federal Circuit Court)
overruled a holding in Colvin v. Derwinski, 1 Vet. App. 171
(1991), which limited the reopening of previously denied
claims based upon "a reasonable possibility that the new
evidence, when viewed in the context of all the evidence,
both new and old, would change the outcome." See Hodge v.
West, 155 F. 3d 1356 (Fed. Cir. 1998).
Subsequently, the Court held that with regard to petitions to
reopen previously and finally disallowed claims VA must
conduct a three-part analysis, first, whether evidence
submitted is "new and material" under 38 C.F.R. § 3.156(a),
second, if it finds the evidence is "new and material"
immediately upon reopening it must determine whether the
claim is well grounded, based upon all of the evidence,
presuming its credibility, and third, if the claim is well
grounded to proceed to the merits, but only after ensuring
that the duty to assist had been fulfilled. Elkins v. West,
12 Vet. App. 209 (1999) (en banc). However, as noted above,
on November 9, 2000, the President signed into law the VCAA
that eliminated the requirement of a well-grounded claim.
With respect to the issue of materiality, the Court has held
that the newly presented evidence need not be probative of
all the elements required to award the claim but that the
evidence must tend to prove the merits of the claim as to
each essential element that was a specified basis for the
last final disallowance of the claim. Evans v. Brown, 9 Vet.
App. 273, 284 (1996) (citing Caluza v. Brown, 7 Vet. App.
498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table)).
The Federal Circuit Court has held that evidence that is
merely cumulative of other evidence in the record cannot be
new and material even if that evidence had not been
previously presented to the Board. Anglin v. West, 203 F.3d
1343 (2000).
In the instant case, no new evidence has been received into
the record since the January 1996 rating decision. No new
arguments pertaining to new and material evidence have been
articulated. Nothing has been received to tend to prove the
merits of the veteran's claim for service connection and
consequently, nothing so significant has been received to
require a review of all the evidence in order to fairly
decide the claim.
ORDER
The veteran's challenge of the finality of the June 29, 1990
rating decision due to grave procedural error, caused by VA's
alleged failure to execute its duty to assist the veteran in
developing his claim for service connection for a psychiatric
disorder, has no legal merit or entitlement under the law.
To this extent, the appeal is denied.
New and material evidence has not been received to reopen the
claim of entitlement to service connection for a psychiatric
disability. To this extent, the appeal is denied.
____________________________________________
C. P. RUSSELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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